ExpertPages Blog

Category Archives: Research & Trends

As the use of psychology in the defense of police officer shootings becomes more common, a debate has arisen over whether it is appropriate to allow expert testimony on the connection between stress and deadly force.

Defense of Jason Van Dyke

Jason Van Dyke was a white police officer who shot Laquan McDonald, a black teenager from Chicago’s West Side in 2014. Van Dyke shot McDonald 16 times within seconds of exiting his police vehicle. McDonald was holding a knife that he had reportedly used to damage the police vehicle. However, McDonald was already walking away from the police when he was shot. The entire shooting was filmed by another police vehicle’s dashboard camera. Van Dyke was charged with first-degree murder and numerous other charges in connection with the shooting.

At Van Dyke’s trial, Florida police psychologist Laurence Miller took the stand in his defense. Miller holds a Ph.D. from CUNY’s department of psychology, where he specialized in neurocognition. He has his own private practice in Florida and has been consulting with police departments for almost 20 years.

Miller asked the jurors to focus on Van Dyke’s perception of the shooting. He explained that life-and-death situations can cause the body’s stress response to distort cognition, perception, and memory. Miller opined that this stress response can lead to a “deadly force mindset” in police officers, where the officer will feel that his or her only option is to kill or be killed.

The jury ultimately found Van Dyke guilty of 16 counts of aggravated battery and second-degree murder, which is a lesser charge than first-degree murder. This lesser verdict may suggest that the jury believed Miller’s contention that Van Dyke perceived himself to be in danger.

The Argument Against Allowing Deadly Force Psychology

However, the psychology of deadly force is not an exact science. Some psychologists question the connection that stress has to deadly force. While police officers do experience cognitive and perceptual impairments such as tunnel vision or dissociation during deadly encounters, researchers do not know much about how stress affects an officer’s decision to use deadly force.

Psychologist Phillip Atiba Goff, a professor at the City University of New York’s John Jay College of Criminal Justice and cofounder and president of the Center for Policing Equity, a think tank that studies racial disparities in criminal justice policy, commented: “The defense used what seems to be an exculpatory argument, though not actual data, to say, ‘You shouldn’t be responsible because this is the level of stress on the job’… This is a bad area for science to be in.”

Kimberley McClure, a professor of psychology and law at Western Illinois University noted that stress responses are highly individualized. McClure said that Miller should have to clearly establish the factors that may have activated the HPA-axis during the seconds before Van Dyke got out of his car. There is not much peer-reviewed research that connects perceptive distortions to the decision to fire a lethal weapon. McClure noted that expert witnesses have the responsibility to help judges, attorneys, and juries understand the knowledge that is out there, but cautioned that experts should also have “an appreciation for gaps in the information we have.”

A Pennsylvania judge has taken the advice of an expert witness and ordered a specific regimen of mental health treatment for a defendant who has been sentenced to state prison time.

The Crime

On June 17, 2016, 31-year-old Calvin McDonald from Allegheny County, Pennsylvania got into an argument with his girlfriend at their residence. McDonald duct-taped and tied up his girlfriend with rope, choked her, and threw her into the back of their minivan. McDonald drove around for hours, going as far as Wheeling, West Virginia. The couple’s two children were also in the vehicle.

When McDonald later returned to his residence, his girlfriend was able to communicate with a neighbor through an upstairs window to call the police.

The Trial

During his trial, forensic psychologist Shannon Edwards testified that McDonald suffered from post-traumatic stress disorder. Edwards also testified that McDonald was in a dissociative state during the incident.

A jury found McDonald guilty but mentally ill on five counts, including aggravated assault, kidnapping, and false imprisonment. The jury acquitted McDonald of sexual assault, endangering the welfare of children and criminal attempt of homicide.

The Sentencing

Judge Alexander P. Bicket of the Allegheny County Court of Common Pleas sentenced Calvin McDonald to 5 to 10 years in state prison. Judge Bicket also ordered the state to provide McDonald with the specific mental health regimen recommended by defense expert witness Shannon Edwards.

Edwards recommended that McDonald receive the psychotropic drugs already prescribed to him, individual and group counseling, and other kinds of therapy. Edwards also requested that Judge Bicket reevaluate McDonald’s mental health after one year. Edwards said that McDonald will regress if he does not continue to follow his current treatment regimen.

Mental Health Courts

Allegheny County is one of the many counties that has mental health courts that deal with nonviolent offenders whose psychiatric problems are the underlying factors in their criminal cases. In Allegheny County, the mental health court is designed to divert individuals with non-violent criminal charges who have a documented diagnosis of a mental illness to community based services; maintain treatment, housing, benefits, supervision and community support services for the individual; maintain effective communication between the criminal justice system and mental health system; and support public safety.

Benefits of mental health courts include giving an offender the opportunity to be released from jail and placed in mental health services/treatment in lieu of incarceration. An offender who is placed on probation by a mental health court is supervised by a special services probation officer and receives support from an Office of Behavioral Health Mental Health Court probation liaison.

However, mental health court is only available to defendants with a documented diagnosis of a mental disorder, mental disability or dual-diagnosis with a mental disorder and substance abuse who is charged with committing a misdemeanor and/or non-violent felony in Allegheny County and is awaiting trial and/or sentencing.

Judge Bicket’s ruling is an example of how mental health court principles might be applied to prisoners with mental health issues who have committed violent felonies.

A Florida jury has ruled in favor of a plaintiff who filed a suit against his insurance company to receive what he believed to be the full amount owed to him under his policy. The plaintiff believes that the $1.5 million jury verdict in his favor is attributable to the insurance company’s hiding its excessive payments to an expert witness.

The Injuries

On November 12, 2015, Jeffrey Wolfson was in a car crash in Fort Lauderdale. Wolfson experienced a number of debilitating injuries in the crash. Wolfson underwent neck surgery as a result of his accident, in addition to one that he had previously had. Wolfson’s attorney, William Ruggiero, argued that these surgeries are likely to hasten the wear and tear on surrounding discs. Wolfson also suffered a fracture on the vertebra in his lumbar spine, an eye injury, and a mild concussion.

Because the other driver was not insured, Wolfson made a claim against his insurance carrier, Liberty Mutual Insurance, based on his uninsured motorist coverage. Wolfson and Liberty Mutual were unable to come to an amicable settlement, so Wolfson filed a complaint against them in Broward Circuit Court.

The Lawsuit

Wolfson alleged that Liberty Mutual “failed, refused and otherwise neglected” to compensate Wolfson according to the terms of his policy. His policy states that Liberty Mutual is responsible to “pay all covered losses resulting from the negligence of an uninsured and/or underinsured driver.”

Liberty Mutual argued that Wolfson’s injuries were not as severe as he alleged and presented evidence that the medical treatment he obtained was unnecessarily expensive. The company also suggested that plaintiff’s injuries were due to aging and degradation, rather than caused by the accident.

Liberty Mutual hired a neurologist, ophthalmologist, radiologist, and two orthopedic doctors to bolster its case. Ruggiero says that the radiologist, Dr. Steven Brown, may have played a large role in the favorable verdict for his client.

Initially, Dr. Brown, was deposed by video because he said that he was not available to give testimony at trial. Ruggiero subpoenaed the doctor to appear in court in-person. Dr. Brown said he was unavailable. Ruggiero then asked how much Dr. Brown was being paid for his services. When the court ordered the parties to reveal the amounts, Liberty Mutual revealed that it was paying Dr. Brown $58,000 to testify at trial.

Ruggiero says that the jury’s verdict is largely attributable to the size of Liberty Mutual’s payment to Dr. Brown and its subsequent concealment. Ruggerio said, “I think people were turned off by that number… I’ve been doing this for 28 years and have never seen anything like that number; it was just too big!” Ruggiero noted that Liberty Mutual had paid the ophthalmologist $23,000 and the neurologist $7,000.

The jury awarded Wolfson $1,579,629 total damages: $219,629 in past medical expenses, $150,000 in future medical expenses, $450,000 for past lost earnings, and $360,000 for future lost earnings.

As ExpertPages reported last year, the Florida Supreme Court declined to adopt the Daubert standard of expert witness admissibility after the Florida legislature added it to the state Evidence Code. The Florida Supreme Court has the power to determine procedural rules that govern Florida’s court system and can reject legislation that invades that domain.

The court typically defers to legislation that changes court procedures, but reserves the power to overturn procedural legislation when it has doubts about its constitutionality. The court expressed concerns about the impact that Daubert has on the right to a jury trial because it substitutes a judge’s view of an expert’s testimony for a view that a jury might reasonably take.

Opponents of Daubert argue that it is the jury’s function to determine the credibility of witnesses. Proponents of Daubert make a distinction between the reliability of an expert’s methodology and the expert’s credibility.

Since an expert’s credibility typically hinges on the reliability of an expert’s methods, there is good reason to question whether the distinction is illusory. The Florida Supreme Court, in choosing not to adopt Daubert, placed its faith in juries to decide whether experts form their opinions in a reliable way.

The court’s decision in 2017 not to adopt Daubert as a rule of evidence avoided ruling on whether the legislature’s 2013 addition of the Daubert standard to the Evidence Code violated the Florida Constitution. That issue came before the court in DeLisle v. Crane because Florida’s Fourth District Court of Appeal ruled in 2016 that a trial court erred by not applying Daubert to exclude expert evidence.

Facts of the Case

Richard DeLisle developed mesothelioma, a form of cancer that is caused by inhaling asbestos fibers. He sued a number of businesses that may have exposed him to asbestos. His case went to trial against three defendants. Two other potential sources of asbestos exposure were included on the verdict form.

The jury found that all five entities named on the verdict form, including the three defendants, were responsible for DeLisle’s mesothelioma. The verdict against Lorillard Tobacco was based on evidence that DeLisle smoked Kent cigarettes in the 1950s. The filters in Kent cigarettes at that time contained asbestos. The filters were supplied by a former subsidiary of Hollingsworth and Voss Co. (“H & V”). The jury’s verdict against H & V was based on its use of asbestos in cigarette filters. The verdict against Crane Co., a manufacturer of valves and pumps, was based on its use of gaskets that contained asbestos.

One of DeLisle’s experts testified that every exposure to asbestos during a lifetime substantially contributes to mesothelioma. Two of his experts testified that low level exposures to the kind of asbestos used by Crane might not substantially increase the risk of mesothelioma.

Lorillard and H & V moved to exclude the causation testimony of four expert witnesses: a toxicologist, an environmental scientist, a pulmonologist, and an industrial hygienist. The companies argued that the testimony did not satisfy the standards of Daubert contained in the state statute that the legislature enacted. The trial court held a Daubert hearing and admitted the testimony.

The jury returned a verdict of $8 million. The jury apportioned 22% of the fault to H & V, 22% to Lorillard, and 16% to Crane. The remaining fault was attributed to the two entities that were not on trial. The trial court rejected all challenges to the verdict and entered judgment in favor of DeLisle.

The court of appeals reversed the judgment after concluding that the trial court failed to exercise its gatekeeping function under Daubert. The state supreme court agreed to review the decision to determine whether the legislature violated the principle of separation of powers by making a procedural change to the rules of evidence.

Supreme Court’s Rule-Making Power

The Florida legislature adopted the Florida Evidence Code in 1979. The Florida Supreme Court, while questioning the legislature’s power to impose procedural rules on the Florida court system, used its rule-making authority to adopt the Evidence Code to the extent that the Code’s provisions were procedural. The supreme court adopted the Code to avoid prolonged battles as to which of its sections address substantive law and which are procedural.

Since 1979, the supreme court has generally adopted legislative changes to the Evidence Code. In 2000, however, it declined to adopt a rule that would have allowed former testimony of a witness to be admitted at a criminal trial, even if the witness was available to testify. That rule would have violated a defendant’s constitutional right to confront witnesses, as the court decided three years later when it reversed a trial court decision that admitted testimony under the legislature’s rule.

The supreme court subsequently declined to adopt other procedural rules enacted by the legislature, including a rule that would have rendered inadmissible the testimony of out-of-state experts in medical malpractice cases unless the experts subjected themselves to disciplinary review by the Florida Board of Health. Last year, the court declined to adopt the legislature’s addition of the Daubert rule to the Evidence Code.

Substance v. Procedure

The Florida Supreme Court formally adopted the Frye standard to determine the admissibility of expert opinions in 1989. The Frye test equates an opinion’s reliability with the expert’s use of a generally accepted methodology to arrive at that opinion.

The U.S. Supreme Court replaced the Frye standard with the Daubert standard in 1993. While proponents of the Daubert test argue that it keeps “junk science” out of the courtroom, the Florida Supreme Court declined to adopt Daubert because (as it explained in a 1997 decision) it viewed Frye as a stricter test that was more likely to assure the reliability of expert evidence.

As the Florida Supreme Court explained: “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Since judges are not scientists, the court deemed Frye to be the better test for judging reliability.

Responding to demands made by lobbyists for the insurance industry and other corporate interests, the Florida legislature adopted Daubert in the Evidence Code. However, the Florida Constitution requires a two-thirds legislative majority to change the Florida Supreme Court’s procedural rules. The vote in the Florida House fell well short of that margin.

The supreme court decided that a rule governing the admissibility of expert testimony is procedural. Substantive rules create, define, or regulate substantive rights while procedural rules regulates the actions of litigants in court proceedings. There is no substantive right to present the testimony of a particular expert. Rather, courts decide whether to admit expert testimony by following a procedure that determines whether the testimony is reliable.

Under the Florida Constitution, it is the Florida Supreme Court that is empowered to define court procedures. The court decided that the legislature unconstitutionally infringed upon that procedure by adopting the Daubert standard. Florida will therefore continue to use the Frye standard to determine the admissibility of expert opinions.

Court Reinstates Verdict

Given the Florida Supreme Court’s refusal to use its rulemaking authority to adopt Daubert after the legislature amended the Evidence Code, it should come as no surprise that the supreme court reversed the court of appeals’ reliance on the legislatively-adopted Daubert standard.

The supreme court noted that Frye only excludes opinions that are based on new or novel methodologies that the scientific community has not accepted. In all other cases, it is the jury’s role to assess the reliability of expert testimony.

The supreme court held that medical causation testimony concerning mesothelioma is not new or novel and is therefore not subject to the Frye standard. Nor does an assessment of the risk of harm caused by substances containing asbestos depend on new or novel methods of analysis.

One expert’s disagreement about the reliability of another expert’s methodology is exactly the kind of factual dispute that juries should resolve. The court concluded that judges should not usurp the jury’s role in “choosing between legitimate but conflicting scientific views.”

A new study has challenged the traditional practice of allowing an officer time to “cool-off” before giving a statement following a police shooting.

Recovery Time Following Shooting

Traditionally, when a police officer is involved in a shooting, the officer is given a period of time to recover before providing his or her statement. The International Association of Chiefs of Police “Officer-Involved Shooting Guidelines” recommends that “Officers should have some recovery time before providing a full formal statement… An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.”

This recommended waiting period is mandated by rules or laws in many jurisdictions. Other police departments have agreements with police unions to honor the waiting period. This waiting period is recommended by Bill Lewinski, a behavioral scientist who many police officers believe to be the definitive expert on interviewing officers after shooting. Lewinski is a professor emeritus of Law Enforcement at Minnesota State University and the founder and director of the Force Science Institute, a research, consulting, and training organization focused on human behavior in use-of-force situations.

Lewinski has studied police use-of-force issues since 1975 and has opined that “delay enhances an officer’s ability to more accurately and completely respond to questions.” Lewinski has recommended “a recovery period of at least 48 hours before being interviewed in depth.”

Of course, if delay after a stressful event enhances memory, one might expect the police to delay interrogations of the people they arrest for shootings for 48 hours to give their memories a chance to improve. That isn’t their practice, because the real benefit of delay to a shooter is the opportunity to fabricate a coherent and innocent explanation of the shooting.

New Study by Criminologists

Criminologists Geoff Alpert, Louise Porter, and Justin Ready conducted a study to test the theory that a police officer’s memory will benefit for a cooling-off period. The study involved 87 police officers who participated in a live active-shooter simulation in an abandoned building. The officers were divided into two groups: half were interviewed immediately after the shooting and the other half was interviewed two days later. The first group was also interviewed two days later, to see how their memory performed in a second interview.

The interview process consisted of 19-multiple choice questions related to the shooting. Nine questions were related to the threat and 10 questions were about nonthreatening details. Following the interviews, the researchers concluded that the officers’ cognition “did not seem to be directly affected by how recently they had experienced the scenario, and no significant improvement was evident after two days either between or within groups.” The researchers noted that the “recall of non-threat related information was significantly better in the immediate condition compared with the delayed condition.”

The researchers concluded that early questioning can aid memory retention. They stated, “We did not find any evidence … that delay improves either recall or cognitive capability that could indicate enhanced ability to respond to questioning.”

Lewiniski criticized the study and its use of multiple-choice questions to evaluate accuracy of memory and stress levels. Lewinski suggested that a more realistic study would involve heart rate and pulse monitors and trained cognitive interviewers. Lewinski also noted that the study did not take into account that many officers have worked long hours before the time of a shooting or post-event interview, which harms cognitive abilities. Notably, Lewinski has not conducted the “improved” studies to determine whether the results would support his theory that delayed interrogation following a stressful event improves memory.

The New Mexico Supreme Court recently denied the state Attorney General’s request to prevent defense experts from using their own facilities and equipment to analyze evidence in a child pornography prosecution. The Attorney General argued that expert witnesses should use the government’s computers and should examine the evidence in government facilities. The case raises troubling questions about the efforts of prosecutors to hinder the work of defense experts whose analysis of evidence may reveal that no law was broken.

Expert testimony is essential in child pornography cases because Congress can only prohibit the possession of pornography involving actual children. It is not unlawful to possess a drawing or painting of a child that is a product of an artist’s imagination. By the same token, it is not unlawful to possess a digitized image of a child who is not real. Discerning the difference between a digitized photograph of a real child and a digitally created image of a child who isn’t real requires careful expert analysis. Hindering experts from performing that analysis risks the conviction of defendants who committed no crime.

Federal Law and Expert Witnesses

Everyone agrees that when child pornography is used as evidence in a criminal case, the evidence should not be distributed to the public. Possession of child pornography, after all, is illegal.

In federal cases, the U.S. Justice Department went a step further by arguing that defense attorneys should not be given copies of the evidence against their clients in child pornography cases because defense lawyers cannot legally possess it. That position made it difficult for defense lawyers to share the evidence with expert witnesses, who sometimes discover that the images seized from defendants do not depict children, or even real people, and that they are not in fact illegal to possess. A cynic might suspect that undermining the ability of defense experts to challenge the prosecution’s evidence is exactly why the Justice Department does not want to share its evidence.

When defense attorneys pointed out that prosecutors were in possession of suspected child pornography and asked why prosecutors could possess it if defense lawyers couldn’t, the answer was typically “Because we’re the government and you’re not.” Courts did not always view that as a sensible answer. Some courts required prosecutors to give copies of the evidence to defense attorneys, so that expert witnesses could examine the images using the equipment in their facilities, subject to protective orders that prevented the release of the evidence to anyone else.

When courts began to give defendants meaningful access to evidence, the Justice Department asked Congress to pass a law making prosecutors the “custodians” of suspected images of child pornography and prohibiting defense attorneys from obtaining copies of those images. The law served no important public policy, since nobody seriously believed that defense attorneys or their experts were violating protective orders by distributing allegedly pornographic images to the public. Many defense attorneys suspected that prosecutors simply wanted to make it harder for defendants to have a fair trial by preventing defense experts from conducting a meaningful analysis of the evidence. As it usually does, however, Congress gave the Justice Department what it wanted.

In other cases, when evidence has been seized from a defendant, federal discovery rules requires the government to give a copy of that evidence to the defense. Congress enacted an exception to that law that applies to child pornography. A federal statute now provides: “(1) In any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.” Of course, whether evidence “constitutes child pornography” is exactly the issue that defense experts analyze and that juries must decide, but prosecutors read the law as if it says “any property or material that the government alleges is child pornography.” Courts generally seem to be fine with that interpretation, given that the obvious intent of the federal law is to keep evidence out of the hands of defense attorneys and their experts.

Challenges to Federal Law

Most challenges to the federal law have failed. The law requires prosecutors to give defense attorneys and their experts ample opportunity to examine the evidence at a place chosen by the government, which is usually a conference room in the U.S. Attorney’s office or at the local FBI office. Inspection is usually overseen by a law enforcement agent. Courts have occasionally sided with defense attorneys who argue they were not given sufficient time to analyze the evidence, but courts have not often been receptive to complaints that lawyers should have been given access to the evidence outside the confines of a government office.

Occasionally, however, courts have recognized that expert witnesses cannot conduct a meaningful analysis of the evidence without testing it in the expert’s own facilities. In one case, for example, a computer forensic expert and two digital video experts “described the great cost and effort that would be required to conduct their analyses in a Government facility,” including the expense of moving a large truckload of equipment to the government office and the risk of damaging the equipment during the move. The court sensibly ordered the government to give the expert a mirror image of the defendant’s hard drive so that the experts could analyze it in their own offices.

Notably, prosecutors have sometimes given their own experts unrestricted access to the evidence while limiting the access provided to defense experts. Courts have been appropriately critical of the assumption that private experts hired by the government are more trustworthy than private experts hired by the defense, although federal prosecutors have brazenly argued that private experts somehow become the government when they are hired by the government. At least one court rejected the argument that retained experts are government employees.

New Mexico Court Sides with Defense

The federal law that makes the government the custodian of child pornography evidence only applies to federal prosecutions. A few states have enacted similar laws, but state courts are generally free to safeguard the rights of defendants by entering protective orders when defense attorneys want experts to review the evidence in their own facilities.

Recognizing the important role played by expert witnesses in child pornography cases, a judge in Bernalillo County, New Mexico ordered the prosecution to provide copies of images seized from the defendant to the defense expert. The New Mexico Attorney General asked the state supreme court to reverse the order on the bizarre theory that prosecutors would be violating the law by following the court’s order. The concern that prosecutors will prosecute prosecutors for obeying a judge’s order, an act that clearly immunizes them from prosecution, did not persuade the state supreme court to overturn the judge’s ruling. The court denied the Attorney General’s effort to prevent the defense expert from conducting a fair analysis using the expert’s own equipment.

To large corporations, insurance companies, and their lobbyists, Missouri is a “judicial hellhole.” To consumers and injury victims, Missouri is a state where business lobbyists have not made it impossible for them to win fair compensation when they are harmed by corporate wrongdoing. Both perspectives are poised to change.

Corporate lobbyists have been fierce advocates for the Daubert rule, which (from their perspective, at least) restricts the admissibility of expert testimony, potentially making it more difficult for plaintiffs to win cases. They realized their dream with the election of Eric Greitens as governor. One of the legislature’s first agenda items was to pass a Daubert bill. Gov. Grietens signed the bill into law in March.

According to Gov. Grietens, Missouri’s adherence to the Frye standard allowed “trial lawyers to come to Missouri, pick our pockets, and hurt our businesses.” The governor cited no example of a verdict against a business that was undeserved. He also failed to identify any “crooked trial lawyers” or “shady witnesses” who affected the outcome of a Missouri trial, although he derided them at the signing ceremony. While the governor’s incendiary language reflects the view of insurance industry lobbyists, it detracts from even the appearance of fair-minded lawmaking.

Again citing no evidence, the governor suggested that the Frye standard “makes us less competitive than other states — at a time when we are fighting for every single job.” Signing the bill, the governor said, sent “a signal to the rest of the country that Missouri is open for business.” Opponents of the bill argued that it sent a message that businesses will no longer be held accountable when their negligent conduct harms consumers.

Daubert in the States

The Daubert standard is named after a United States Supreme Court decision that changed the federal standard for admitting expert testimony. The Daubert standard requires trial judges to act as a gatekeeper to prevent juries from hearing expert testimony unless the expert has applied a reliable methodology in a reliable way to facts that are sufficient to support the expert’s conclusion.

The Missouri legislature’s last attempt to enact a Daubert bill was vetoed by Gov. Jay Nixon, a Democrat. The Florida legislature recently passed a Daubert bill, but the Florida Supreme Court declined to adopt it. A large majority of states have adopted at least part of the Daubert standard, but making a state-by-state comparison is difficult because courts that implement some version of the Daubert rule do not always agree upon its meaning.

Does Daubert Matter?

In a routine case, the standard for expert witness admissibility makes no difference. A treating physician who testifies about the injuries a patient suffered in a car accident will be allowed to give the same testimony regardless of the standard. Daubert hearings in routine cases, however, might drive up the cost of litigation and place an unnecessary burden on overworked judges.

Some lawyers, including some legal scholars, see the Daubert standard as restricting expert testimony by keeping “junk science” out of the courtroom. While Daubert advocates tend to view “junk science” in the context of toxic tort and product liability claims that can only be proved with expert evidence, the Daubert standard has also been used in criminal cases to restrict questionable expert testimony about cellphone location data and the ability to match a bitemark to a suspect.

Other lawyers, including some legal scholars, view Daubert as liberalizing the admissibility of expert testimony. They point out that expert opinions based on new or novel scientific techniques were excluded under the Frye standard because they were not “generally accepted” by the scientific community, but are admissible under Daubert if the new methodology is reliable.

Both of those views have some merit. Daubert both restricts the admissibility of expert evidence by keeping juries from hearing unreliable opinions while opening the door to reliable opinions that are based on new views of science. But in any particular case, how Daubert should be applied is up to the judge, and judges have widely varying views about their gatekeeping role.

Some judges seem to expect experts to express opinions with certainty, which is contrary both to the probabilistic nature of science and to the burden of proof in civil cases. Some judges distrust experts, particularly in civil cases (such as pharmaceutical injury claims) where causation is particularly difficult to prove. Those judges are inclined to resist admitting expert testimony.

Other judges believe it is for the jury, not the judge, to decide whether an expert opinion is trustworthy. Those judges, who tend to recognize that judges are trained in law, not science, are more inclined to admit expert testimony.

Different judges may therefore apply the same Daubert standard to similar facts and arrive at different results. One scholarly analysis concluded that court decisions applying Daubert have been “nonuniform, inconsistent, and irreconcilable.” In the end, notwithstanding the state’s rancorous Daubert debate, how Missouri judges feel about expert evidence may be more important than the standard they apply.

The Florida Supreme Court has rejected a legislative attempt to impose the Daubert standard of expert witness admissibility on Florida courts. As ExpertPages earlier reported, the Florida Bar’s Board of Governors asked the Florida Supreme Court to set aside a legislative attempt to force the state’s judiciary to use the Daubert standard when deciding whether to admit expert testimony.

The Board of Governors narrowly sided with lawyers who represent injury victims when it asked the Court to reject Daubert. They argued that Daubert benefits corporations and other powerful defendants by restricting the evidence that might be used to prove their wrongdoing. The business and insurance community, on the other hand, contended that Daubert provides a safeguard against the use of “junk science” to sway juries.

The Legislature v. The Court

Florida courts have historically followed the Frye standard to determine the admissibility of expert testimony. As applied in Florida, the Frye standard requires trial judges to exclude expert testimony that is based on a new or novel scientific methodology unless it is grounded in principles that have gained general acceptance in the relevant scientific community.

The Florida legislature passed a law that purported to require Florida courts to follow the Daubert standard of expert witness admissibility. That standard generally requires judges to determine the reliability of expert testimony and to exclude opinions that are not based on the reliable application of a reliable methodology to sufficient facts or data.

While it is the legislature’s responsibility to make law, the Florida Supreme Court considers it the judiciary’s responsibility to craft the procedural rules that govern court proceedings. Since rules of evidence are generally regarded as procedural rules rather than substantive laws, the Florida Supreme Court has the power to decide whether evidentiary rules enacted by the legislature will be followed by the courts, at least to the extent that they are procedural.

Florida Bar Recommendation

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court decline to adopt the legislatively enacted Daubert standard. The Committee’s Majority Report noted that the legislature wanted to prohibit “pure opinion testimony” in Florida courts, while Florida courts have long endorsed the admissibility of “pure opinions” from qualified experts.

Florida precedent establishes that “pure opinion testimony,” such as a doctor’s diagnosis or a psychologist’s conclusion that a defendant is not competent to stand trial, does not need to satisfy the Frye standard. “Pure expert opinions” are those that are based on training and experience and that might assist the jury even if other experts might dispute them.

Florida precedent cautions trial courts to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts.” Whether conclusions drawn by experts are credible is a question for juries, not judges, to resolve. The Committee argued that a litigant’s constitutional right to trial by jury would be diminished if judges were to decide in the first instance whether an expert’s conclusions are reliable.

The Committee also raised practical objections to Daubert, noting that the standard places an unreasonable burden on courts and litigants while prompting judges to make inconsistent decisions that are based on their own preferences rather than a consistent rule of law. In the end, however, it was the constitutional concern that carried the day in the Florida Supreme Court.

Florida Supreme Court Rejects Daubert

In a brief opinion, the Florida Supreme Court noted that it typically follows a policy of adopting procedural rules that the state legislature enacts. When the Court has doubts about the constitutionality of a procedural change, however, the Court may decline to adopt it.

The Court noted that the Committee raised “grave constitutional concerns” about the impact that the Daubert rule would have on the right to a jury trial and on access to the courts. For that reason, the Court declined to adopt the legislature’s changes to Florida’s rule regarding expert witness admissibility.

The argument that the Daubert standard is unworkable, that it leads to inconsistent results, and that it increases the cost of litigation might have played a behind-the-scenes role in swaying the Florida Supreme Court. Court decisions applying Daubert have been described as “nonuniform, inconsistent, and irreconcilable.”

Constitutional concerns, on the other hand, have not prevented the federal government and the majority of states from adopting the Daubert rule. The Florida Supreme Court made no attempt to address or resolve those concerns, but merely indicated that they were sufficiently grave to warrant its rejection of the Daubert rule “to the extent it is procedural.”

Whether some or all of the Daubert standard is substantive or procedural is a question that will probably need to be resolved in a future case. It is generally recognized, however, that rules governing the admissibility of evidence are procedural since they tell courts how to conduct trials without affecting the substantive rights of litigants. It is therefore likely that the Supreme Court’s decision spells the death of Daubert in Florida, at least for the near future.

The American system of justice is designed to be adversarial. Two sides do battle and a judge or jury decides which side has the better case. To prove their cases, parties often rely on expert witnesses.

The system works reasonably well, but arguments are occasionally made that justice would be better served by relying on “neutral” or “independent” experts who, having been appointed by the judge, would not feel the need to slant testimony in favor of whichever party hired them. Whether that proposal would actually lead to better results is open to question.

Appointed Experts

The Federal Rules of Evidence allow a judge to appoint an expert, with or without the consent of the parties, in both criminal and civil cases. The rule’s explanatory comment states that the rule is meant as a counterweight to the practice of “shopping for experts.”

Of course, the adversarial system anticipates that parties will present evidence that helps them prove or disprove a claim. Finding experts who have something useful to contribute to the jury’s decision should not derogated by the phrase “shopping for experts.”

Judges rarely appoint their own experts because they don’t want to interfere with the fundamental nature of an adversarial system of justice. Judges are understandably reluctant to impose an expert witness on lawyers when the lawyers believe they have chosen experts are better suited to provide expert opinions to the jury.

Judges who have faith in the adversarial system tend to understand that experts frequently disagree, not because they are being paid, but because science is often inexact. Disagreement among experts is nearly inevitable when the subject matter of their testimony is complex, and who is to say that a court-appointed expert is more likely to be correct than one hired by the parties?

A study by the Federal Judicial Center found that federal judges rarely appoint their own expert witnesses. Judges expect the adversarial system to work and they don’t want to influence the outcome of a case by appointing an expert who may benefit one side more than the other. Judges are also concerned about forcing parties to pay for an expert they don’t want or can’t afford.

Complex Issues

Judges may be more inclined to appoint an expert to assist the court when the case will not be resolved by a jury and when issues are complex. In child custody disputes, for example, the court might appoint a psychologist to determine whether one parent would be a better custodian than the other.

Judges who are asked to resolve disputes that involve complex scientific or technical issues might also appoint an expert. Engineering experts are appointed to help courts in cases involving patents and trade secrets, while accounting experts may help judges determine damages in commercial cases. Less often, judges appoint experts in medical malpractice, product liability, and toxic tort cases. Since those cases are usually resolved by juries, however, judges are reluctant to interfere with the trial by insisting on a judicially-appointed expert.

Judge Richard Posner, one of the brightest and most controversial judges on the federal Court of Appeals, has long advocated the appointment of “neutral” experts to educate juries about technological or commercial issues that jurors (and judges) are unlikely to understand. While other commentators — including some experts and judges — have jumped on that bandwagon, the bandwagon is moving slowly and may never reach its intended destination.

Controversial Suggestions

Advocates of court-appointed experts tend to distrust the adversarial system. Sometimes that distrust is rooted in trial outcomes (such as verdicts against big businesses or insurance companies) that are unfavorable to the advocates. Others see those outcomes as proof that the system works just fine.

Distrust of expert testimony has been strongest in cases involving drugs that are alleged to cause health problems and toxic substances that are alleged to harm people who live in a particular area. Businesses and insurance companies, unhappy with the verdicts that juries returned against them, insisted that those allegations were supported by “dubious causation theories,” a concern that gave birth to the Daubert standard. Only experts who have formed opinions using a reliable methodology may testify under Daubert.

Whether judges are capable of evaluating the reliability of a scientific methodology is an open question. Judges are not scientists. As Justice Breyer noted in a concurring opinion, some scientists have suggested that judges should appoint their own experts to help them evaluate the reliability of a party’s retained expert. Yet how is a judge to know that an appointed expert is less biased or more capable than a retained expert?

Perils of Neutrality

When an expert serves the court rather than a party, the expert is said to be neutral. But no expert should be an advocate for anything but the truth. The same is true of judges. If there is a risk that an expert will habitually favor one side in a dispute, that risk may exist whether the expert is retained by a party or judicially appointed. After all, judges are often seen as being “liberal” or “conservative,” and their biases may incline them to appoint experts who share the same biases.

If judges feel the need to appoint experts, they might want to select the experts from a list that has been assembled by the relevant scientific community. That suggestion might overcome the fear that judicial bias would lead to the appointment of a biased expert. But if the group that assembles the list has a bias, a judicially-selected expert may be just as partisan as a retained expert.

When judges do appoint experts, should the jury know that the expert was selected by the court, not the parties? The risk is that juries may place undue reliance on an appointed expert in the belief that “the judge’s expert” must be more reliable than the retained experts. Even if jurors are not told that an expert was court-appointed, the fact that an expert isn’t working for either party is often easy for juries to discern.

Cross-Examining an Appointed Expert

An appointed expert should be subject to cross-examination just like any other expert, but some lawyers fear that a “tough” cross-examination of an appointed expert might incur the wrath of the appointing judge. Fear that upsetting the “judge’s expert” will upset the judge might lead to a timid cross-examination, but the adversarial system requires lawyers to be vigorous as they probe experts to expose the strengths and weaknesses of their opinions.

Since a jury might attach more weight to the opinions of the “court’s expert,” lawyers who cross-examine the expert should look for common ground in the analysis of the appointed expert and that of the party’s retained expert. The best strategy might be to emphasize points of agreement while suggesting that disagreements between the experts are minor. And since expert opinions depend on the facts, the appointed expert might be willing to concede that his or her opinion could change depending on which party’s version of the facts the jury accepts as true.

In the end, skilled advocates in an adversarial system can only do their best to help juries find the truth. Sometimes the system works and sometimes it doesn’t, but it is far from clear that the routine appointment of expert witnesses by courts would improve the accuracy of jury verdicts.

The need for criminal defense attorneys to hire independent expert witnesses has never been more clear, as the reliability of testimony given by expert witnesses who work for the police has increasingly been called into question. Unfortunately, the importance of an independent expert witness to a fair trial isn’t always apparent to defense attorneys or to judges.

Two cases involving robberies of 7-Eleven stores illustrate the importance of retaining a forensic video expert when a criminal accusation is supported by video evidence. In both cases, the defendants were convicted of robbery based on expert testimony that the defendants were the same height as the robber shown on surveillance camera footage. In both cases, independent forensic video experts hired after the defendants were sentenced concluded that the surveillance videos proved the defendants’ innocence.

George Powell III

George Powell III was charged with robbing a 7-Eleven store in Killeen, Texas in 2008. A surveillance video showed a man wearing sunglasses and a baseball cap pointing a gun at the store clerk. The video was broadcast on the news and the police arrested Powell in response to a tip from a television viewer.

At the time of the robbery, the clerk estimated that the robber was 5 feet 6 inches tall. Shown a photo array of faces, she picked Powell’s photograph. She was not aware, however, that Powell is 6 feet 3 inches tall. Other clerks were less confident that Powell was the robber.

It isn’t uncommon for eyewitnesses to be mistaken when they are shown photographs rather than seeing an in-person lineup. The method used to obtain the clerk’s identification of Powell is so unreliable that it was later banned in Texas courts.

To deal with the height discrepancy, the prosecution called Michael Knox as an expert witness. Knox, a retired police officer, testified that he used the science of photogrammetry to determine that the robber in the video was more than 6 feet tall. Knox had no training in photogrammetry and had never before attempted to determine a suspect’s height based on a video image. Powell was nevertheless convicted on the strength of that evidence, coupled with the testimony of a Texas jailhouse informant that was later recanted.

Powell’s family eventually hired two experts who examined the video and determined that the robber was about 5 feet 7 inches tall. The Texas Science Commission then hired Grant Fredericks, who taught video analysis at the FBI National Academy. Fredericks determined that the robber was somewhere between 5 feet 6 inches and 5 feet 9 inches tall. All three expert opinions excluded Powell as a suspect. All three experts agreed that Knox did not follow professional standards in forming his opinion about the robber’s height.

Powell’s defense team has filed a motion challenging the conviction. A district judge will consider the evidence, including the new expert evidence, and make recommendations to the Texas Court of Criminal Appeals as to whether Powell should be granted a new trial.

Michael Hutchinson

A clerk who was robbed at gunpoint at a 7-Eleven in Milpitas, California identified Michael Hutchinson as the robber. The identification was problematic because the robber was wearing a mask. Hutchinson was nevertheless convicted in a 1998 trial.

Hutchinson’s appellate attorney asked the state appellate court to approve funds for a forensic video expert. The attorney told the court that an expert was needed to establish that Hutchinson was not the robber captured on tape by the store’s surveillance camera. Deciding that an expert was unnecessary, the court affirmed Hutchinson’s conviction.

After taking an interest in Hutchinson’s case, the Mercury News hired a forensic video expert to examine the surveillance video. The expert concluded that the robber was much shorter than Hutchinson.

Hutchinson then brought his case before a federal judge. Relying in part on the forensic video expert’s opinion, the judge ruled that Hutchinson’s attorney failed to protect his client’s right to a fair trial. The judge concluded that the attorney should have recognized the need for an expert analysis of the videotape.

The judge’s decision that Hutchinson was entitled to a new trial was affirmed on appeal. The federal appellate court chastised the state courts for failing to fund the hiring of a necessary expert.

Forensic Video Analysis

Forensic video analysis has become increasingly important as more businesses, government buildings, and private homes install video cameras that capture the images of criminal suspects. The April 2016 report by the Texas Forensic Science Commission, prepared in response to Powell’s complaint, recognizes the legitimacy of photogrammetry. At the same time, the fact that different experts arrive at different height estimates when examining the same video “gave the Commission pause and raised concerns as to the state of forensic video analysis.”

The Commission noted that “the subjectivity involved in the different approaches to making a height determination raises questions about inter-analyst reliability within the discipline.” The absence of known error rates, the failure of analysts to standardize an analytical method, and the presence of confirmation bias (where the analyst knows the suspect’s height before undertaking the analysis) all raise questions about whether expert forensic video analysis should be admissible against a defendant in a criminal trial.

Lessons Learned

The cases of Powell and Hutchinson spotlight the importance of independent experts. In both cases, the defense attorney should have retained a forensic video expert to determine whether the robber was the same height as the defendant.

Blindly putting faith in the ability of the prosecution’s expert is a mistake, since experts who work for the police too often see themselves as advocates for the prosecution, not as advocates for the truth. At the very least, a criminal defense attorney who is faced with a prosecution expert in forensic video analysis should read and understand the concerns raised by the Texas Forensic Science Commission.

At the same time, too many judges believe that experts should only testify for the prosecution, not the defense. The Texas court that denied Powell’s request for funding to hire a forensic video expert assumed that an independent expert would add nothing of value to the proof. The court’s conclusion that an independent expert would not have been helpful is belied by recent revelations that forensic video experts employed by police agencies, when left unchallenged by independent experts, contribute to wrongful convictions.